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Akwei v. Burwell

United States District Court, D. Maryland

June 23, 2016

SYLVIA MATHEWS BURWELL, Secretary, Department of Health and Human Services.


          DEBORAH K. CHASANOW, District Judge.

         Presently pending and ready for resolution in this employment discrimination case is a motion to dismiss or, in the alternative, for summary judgment filed by Defendant Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services ("Defendant"). (ECF No. 19). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion to dismiss or, in the alternative, for summary judgment will be granted.

         I. Background

         A. Factual Background

         Unless otherwise noted, the facts outlined here are undisputed and construed in the light most favorable to Plaintiff Adote Akwei ("Plaintiff"). Additional facts will be discussed in the analysis section. Plaintiff, a black, Christian male of African descent, worked in the Office of Acquisitions ("OA") at the National Institutes of Health ("NIH") as a government contractor employed by Interior Systems Incorporated Professional Services ("ISI") from July 2006 until April 2011. (ECF Nos. 19-1, at 3; 25-2, at 1). Until June 2008, Plaintiff was working as a "Clerk/Typist" and was one of several contractors within the OA. In June 2008, the NIH restructured the OA, converting all but one contractor position to federal government employee positions. (ECF No. 19-6 ¶ 3). Plaintiff was selected for the one remaining contractor position and began working at the reception desk in the OA front office. ( Id. ¶ 4). After the reorganization, Plaintiff's title was initially a "Junior Quality Assurance Specialist, but it was changed to a "Clerk/Typist/Program Analyst" in September 2010. (ECF Nos. 19-12; 19-22). In this most recent role, Plaintiff's expected job duties were to: organize and complete all clerical typing duties as assigned; keep office files and task orders updated and prepare reports as required; take messages for personnel and assist management with clerical and typing needs; act as time keeper; procure and maintain office supplies; and "other duties as required." (ECF No. 19-2, at 2).

         For the first two years Plaintiff worked at the OA reception desk, Melissa Richardson served as the OA Director. ( See ECF No. 25-13, at 2-3). In an affidavit submitted as part of the Equal Employment Opportunity Commission's (the "EEOC") investigation into Plaintiff's allegations, Ms. Richardson noted that she "had no problems with [Plaintiff's] work because he was able to perform the tasks [she] assigned to him, " which included answering phones and greeting visitors, picking up and distributing the mail, filing documents, gathering and collating documents for Freedom of Information Act requests, delivering packages to offices, gathering supply orders, and "other related administrative support activities necessary to assist the operation of OA." (ECF No. 25-13, at 4). Ms. Richardson, recognizing that Plaintiff's new role included "evolving tasks" of increased complexity, suggested to Plaintiff's supervisor at ISI that Plaintiff enroll in various training classes that would assist him in performing his new job functions. ( Id. ).

         After Ms. Richardson was reassigned in January 2010, Pat Rice became the Acting Director of the OA. ( See 19-4, at 1-2; 25-13, at 3). According to Mr. Rice, Plaintiff's job description required significantly more than the receptionist and administrative support duties Plaintiff was performing. (ECF No. 19-4, at 3). Mr. Rice believed that Plaintiff "did not demonstrate these skills nor did he complete any tasks related to the majority of these requirements[, ] requiring others to perform these tasks." ( Id. ). Accordingly, Mr. Rice suggested to Plaintiff and Robert England, Plaintiff's supervisor at ISI, that Plaintiff take training courses offered by the NIH or ISI. ( Id. at 5). Plaintiff asserts that he was denied training that he requested in July 2010. (ECF No. 25-2, at 20). Despite several suggestions by Mr. Rice and Mr. England that he take additional training, Plaintiff did not enroll in any of the suggested substantive training courses.[1] Plaintiff contends that Mr. Rice made multiple derogatory remarks about him and his performance. Specifically, Mr. Rice asked Plaintiff to speak more loudly and clearly on the phone, and Plaintiff alleges that Mr. Rice noted that he could not understand Plaintiff due to his accent. (ECF No. 19-3, at 3). Plaintiff also avers that he overheard Mr. Rice tell another employee, "You know that [Plaintiff] cannot amount to anything." ( Id. at 9). Ericka Mack, one of Plaintiff's colleagues avers that Mr. Rice told her that Plaintiff's employment was terminated because Plaintiff "lacked a sufficient level of skill and did not have the appearance to be the face of the office, '" which Ms. Mack believed referred "to the fact that [Plaintiff] wore jeans everyday rather than business casual." (ECF No. 19-7, at 4).

         According to Mr. Rice, other employees complained about Plaintiff's work because they were taking on tasks originally assigned to Plaintiff. (ECF No. 19-4, at 3-4). Mr. Rice also believed that Plaintiff was overusing the Internet for personal use; furthermore, he was unsatisfied with Plaintiff's communication skills, particularly in answering the main OA phone line. ( Id. at 4). Plaintiff also often played religious music at his desk, which Mr. Rice requested he not do during business hours.

         On February 23, 2011, Mr. Rice requested a meeting with Mr. England "to discuss the work performance of [Plaintiff]." (ECF No. 19-16). According to Mr. England, Mr. Rice "stated that even though [Plaintiff] is at the front desk, his duties require more than him just answering the phone and that he should be performing other duties as well." ( Id. ). Mr. England met with Plaintiff to convey Mr. Rice's concerns and to provide suggestions for improvement. (ECF No. 19-17). On March 28, Mr. Rice and other supervisors at the NIH requested another meeting with Mr. England to discuss Plaintiff's continued poor performance. (ECF No. 19-18). Mr. Rice "stated that there had not been any substantial improvement" in Plaintiff's work performance and he had not signed up for any training classes. ( Id. ). Plaintiff's NIH supervisors believed that "they were not getting the work or the value from the position that is required to support the office and the Director" and that "they needed someone with greater skill sets with Microsoft Office Suite and handling front desk duties." ( Id. ). According to Mr. England, "NIH stated that they no longer needed the services of [Plaintiff]." ( Id. ). Following this meeting, Mr. England removed Plaintiff from the position at the NIH. (ECF No. 19-8, at 3). Because ISI had no other open contractor positions, it terminated Plaintiff's employment.

         B. Procedural History

         On April 27, 2011, Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor at the United States Department of Health and Human Services ("HHS"), the department of which the NIH is a part. (ECF No. 19-23). On July 4, Plaintiff filed a formal EEO complaint asserting the following claims of discrimination based on race, religion, and national origin: wrongful termination; denial of training; hostile work environment due to Mr. Rice's derogatory comments about Plaintiff's accent and lack of competence; and discriminatory restriction on playing religious music. (ECF No. 19-24). After conducting an investigation and reviewing the record, the HHS EEO office determined that Plaintiff "has not met his burden of persuasion to show by a preponderance of the evidence that he was discriminated against or subjected to harassment based on his race, national origin[, or] religion." (ECF No. 19-25, at 16). Plaintiff appealed the decision to the EEOC, which affirmed the HHS EEO determination and denied Plaintiff's request for reconsideration on February 25, 2015. (ECF Nos. 19-26; 19-27).

         On April 16, Plaintiff, proceeding pro se, filed a complaint in this court asserting discrimination and harassment claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (ECF No. 1). After multiple motions to extend time, Defendant filed the pending motion to dismiss or, in the alternative, for summary judgment. (ECF No. 19). Plaintiff responded (ECF No. 25), and Defendant replied (ECF No. 28).

         II. Standard of Review

         Defendant has moved to dismiss or, in the alternative, for summary judgment. Ordinarily, a court cannot consider matters outside the pleadings or resolve factual disputes when ruling on a Rule 12(b)(6) motion to dismiss. See Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). If the court does consider matters outside the pleadings, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d); see also Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 997 (4th Cir. 1997) ("[A] Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for summary judgment until the district court acts to convert the motion by indicating that it will not exclude from its consideration of the motion the supporting extraneous materials."). Here, both parties submit extraneous materials, and Plaintiff had notice of a potential conversion to summary judgment by virtue of the motion filed by Defendant. See Warner v. Quilo, No. ELH-12-248, 2012 WL 3065358, at *2 (D.Md. July 26, 2012) ("When the movant expressly captions its motion in the alternative' as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur[.]") (quoting Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998)). Accordingly, Defendant's motion will be treated as one for summary judgment.

         Summary judgment is appropriate under Fed.R.Civ.P. 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court of the United States explained that, when considering a motion for summary judgment, the "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.

         In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a "scintilla" of evidence in support of the nonmoving party's case is not sufficient to preclude an order granting summary judgment. See Liberty Lobby, 477 U.S. at 252. A "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).

         Although pro se litigants are to be given some latitude, the above standards apply to everyone. Thus, as courts have recognized repeatedly, even a pro se party may not avoid summary judgment by relying on bald assertions and speculative arguments. See Smith v. Vilsack, 832 F.Supp.2d 573, 580 (D.Md. 2011) (citing cases).

         III. Analysis

         A. Employer-Employee Relationship

         As a threshold matter, Defendant contends that Plaintiff's claims must be dismissed because Plaintiff was not an employee of the NIH but was rather an employee of ISI. (ECF No. 19-1, at 13-21; 28, at 2-7).[2] Plaintiff does not dispute that he was an employee of ISI, but asserts that he also had an employer-employee relationship with the NIH. (ECF No. 25-2, at 3). In effect, Plaintiff contends that the NIH was a joint employer with ISI.

         "An entity can be held liable in a Title VII action only if it is an employer' of the complainant." Butler v. Drive Automotive Indus. of Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015). Even if an entity is not a plaintiff's formal employer, it may be an "employer" under the joint employer doctrine if it exercises "sufficient control of the terms and conditions of [the plaintiff's] employment." Id. (internal quotation marks omitted) (citing Torres-Negron v. Merck & Co., 488 F.3d 34, 40 n.6 (1st Cir. 2007)). In Butler, the United States Court of Appeals for the Fourth Circuit held that the joint employer doctrine applies to actions brought under Title VII, and "multiple entities may simultaneously be considered employers." Id. at 409-10. The Fourth Circuit reasoned that the joint employment doctrine "prevents those who effectively employ a worker from evading liability by hiding behind another entity, such as a staffing agency." Id. at 410.

         In determining whether an entity is an employer under the joint employer doctrine, the Fourth Circuit has directed that ...

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